United States v. Pedro Jolio Prandy-Binett , 5 F.3d 560 ( 1993 )

ORDER

PER CURIAM.

On Appellee’s Suggestion For Rehearing En Banc

Appellee’s Suggestion For Rehearing En Banc and the Response thereto have been circulated to the full Court. The taking of a vote was requested. Thereafter, a majority of the judges of the Court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing, it is

ORDERED, by the Court en banc, that the suggestion is denied.

Circuit Judge HARRY T. EDWARDS would grant the suggestion. His dissenting statement, in which Chief Judge MIKVA, Circuit Judge WALD and Circuit Judge SENTELLE join, is attached.

Separate statement filed by Circuit Judge SILBERMAN concurring in the denial of rehearing en banc.

Separate statement filed by Circuit Judge RANDOLPH.

HARRY T. EDWARDS, Circuit Judge, with whom Chief Judge MIKVA, Circuit Judge WALD and Circuit Judge SENTELLE join, dissenting from the denial of the suggestion for rehearing en banc:

In this ease, the majority reversed the trial court and held that police officers had probable cause to arrest a defendant upon noticing a ;portion of a package wrapped in “duet tape” in the defendant’s bag. See United States v. Prandy-Binett, 995 F.2d 1069 (D.C.Cir.1993). So far as I can determine, there is no decision in our jurisprudence that has allowed an arrest predicated on such flimsy evidence of illicit activity.

After reviewing the appellant’s suggestion for en banc review of this case, one of my colleagues wrote:

If we posit the question as:

X steps from a train in the District of Columbia and walks rapidly through the station carrying a bag from which is emerging the corner of a package wrapped in a silver tape. Is there a probable cause to arrest X for possession of narcotics? I think the answer is no.

I think an opinion that answers the question in the affirmative is a dangerous precedent. I will stand by my vote to en bane.

It seems almost an understatement to say that the majority opinion produces “a dangerous precedent.” Indeed, at trial, even the Government’s “expert” conceded that arrest was not justified:

TRIAL JUDGE: If you saw me walking through the train station with a brick bag like, a cube with some tape on it like that, would you come up and arrest me for carrying narcotics?

THE WITNESS: I would certainly come up and do an investigation.

TRIAL JUDGE: But would that be enough to arrest me?

THE WITNESS: No, sir.

Transcript of Motion to Suppress 48-49, United States v. Prandy-Binett, 774 F.Supp. 25 (D.D.C.1991).

The effect of the majority opinion is to erase the distinction between the degree of suspicion that justifies a Terry-stop and the degree of suspicion that justifies a full arrest. In fact, it is far from clear that the officers in this case had enough even to justify a Terrystop. In order to justify a limited “stop” and “frisk” under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police need more than an “inchoate and unparticu-larized suspicion or ‘hunch.’ ” Id. at 27, 88 S.Ct. at 1883. In this ease, however, the officers acted solely on a “hunch” based on their observation of a piece of duct tape.

The majority’s probable cause analysis in Prandy-Binett utilizes a “conditional probabilities” test that purports to inquire “if one event occurs, how likely is it that another event will occur?” 995 F.2d at 1070. See J. FREUND, MODERN ELEMENTARY STATISTICS 134-40 (1973) (the “conditional probability” that two successive events will occur is the product of the probabilities of each occurrence). This test has never before, in any circuit, been used in a case involving probable cause analysis; and the Government did not urge the adoption of any such test in this case. The test is the majority’s concoction, offered without support or urging, in a futile attempt to bolster an obviously flimsy record.

Further, I question the propriety of the “conditional probabilities” inquiry because (as the majority in Prandy-Binett admitted) probable cause analysis is not susceptible to mathematical formulation. See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (“The concept of reasonable suspicion, like probable cause, is not ‘readily, or even usefully, reduced to a neat set of legal rules.’ ”). Additionally, even assuming that the formula might be helpful in some eases, the analysis in this case fails because there are no material facts upon which to assess any conditional probabilities. The police acted solely on the sight of a portion of a package wrapped in duet tape, which surely cannot justify an arrest.

Finally, the majority in Prandy-Binett usurped the District Court’s role as fact-finder by reviewing the factual record in the case de novo. The majority ignored the finding of the trial judge that the arresting officer saw only a “portion” of the package before arresting the defendant, and also disregarded the credibility findings of the trial judge. Such de novo review of the record is proscribed by our standard of review in cases involving probable cause. United States v. Holder, 990 F.2d 1327, 1328 (D.C.Cir.1993) (noting that “[w]e review de novo ... the arrest, but we examine the court’s findings of fact only for clear error ”) (emphasis added).

The judgment in this case is flatly at odds with the law of this circuit and with the Supreme Court’s teachings on the difference between Terry-stops and arrests. The result, in my view, is a travesty of justice, because it condones “arrests” based on virtually nothing. For these reasons, and other reasons discussed in my dissenting opinion in Prandy-Binett, 995 F.2d at 1074, I dissent.